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Everyone has a fundamental right to be recognized in their chosen Gender: Delhi HC allows transgender student to return to US [Read Judgment]

Apoorva Mandhani
7 Oct 2015 2:12 PM GMT
Everyone has a fundamental right to be recognized in their chosen Gender: Delhi HC allows transgender student to return to US [Read Judgment]
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“Shivani is a brave-heart,” observed Justice Siddharth Mridul, coming to the rescue of a 19 year old NRI transgender, who had approached the Court alleging that her parents had forcibly brought her to India and got her enrolled in an educational institution in Agra so that she could be reformed and taught to be a “normal girl”. The Court directed the Police to escort her to the Delhi Airport so that she could return to the US. Once her passport and her green card is restored, it directed that she would travel unaccompanied and would not be subjected to any harassment upon arrival in San Francisco.

Delivering the judgment that is being widely appreciated by rights activists, the Court expressed its vexation with the behavior meted out to transgenders and observed, “Every human being has certain inalienable rights. This is a doctrine that is firmly enshrined in our Constitution. Gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom. These freedoms lie at the heart of personal autonomy and freedom of individuals. A transgender’s sense or experience of gender is integral to their core personality and sense of being. Insofar as, I understand the law, everyone has a fundamental right to be recognized in their chosen gender.”

Justice Siddharth Mridul cited the Supreme Court's landmark judgment in National Legal Services Authority v. Union of India delivered last year recognizing transgenders as third gender and said that the trauma, agony and pain of the members of the transgender community continues unabated despite the apex court verdict. He observed that the time has come “for us to mainstream the transgender community”. You may read the Supreme Court’s directions in the NALSA case here.

You may read: The “Third” Gender by Pragalbhi Joshi

Shivani had approached the High Court for protection and return of travel documents, with the help of NGO activists. “The present petition highlights and brings to the fore the socioeconomic marginalization and exclusion of those whose behavior is considered “inappropriate” by society. It clearly demonstrates that those who do not conform, render themselves vulnerable to harassment and violence not just by the Police but also by society that ridicules them. Transgenders have long lived on the fringes of society, often in poverty, ostracized severely, because of their gender identity. They have for too long had to endure public ridicule and humiliation; have been socially marginalized and excluded from society, their basic human rights have been severely denuded,” the Court observed.

Earlier on September 22, the High Court had passed an interim order granting police protection to a young transgender. While disposing of the petition on October 5, the Court took into consideration the views of Shivani’s parents who were now in support of their child and had undertaken to finance Shivani’s education for the next three years so long as she pursues a Bachelor’s Degree in Neurobiology. They also assured the Court that in addition to her tuition fee they will provide Shivani with US $500 per mensem for her personal expenses.

It was also alleged before the High Court that Uttar Pradesh Police were harassing and illegally confining the activists who had helped Shivani. This was pursuant to a complaint filed by the mother, under Section 364 of the Indian Penal Code (kidnapping and abducting in order to murder), against unknown persons. Shivani’s mother informed the Court that in view of the rapprochement between the parents and Shivani, she was no longer keen to pursue the complaint.

The Court noted that despite service of notice, there was no representation on behalf of the Police. It hence issued a direction to the UP Police not to harass or illegally confine anybody, except in accordance with the procedure established by law.

Read the Judgment here.

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